EX-4.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated July 11,
2001, is made by and between Xxxxxxx Xxxxxxxx, an individual
("Consultant"), whose address is 0000 Xxxxxx Xxxx, #0-X, Xxxxxxx Xxxxx,
Xxxxxxx 00000-0000, and Xxxxxxx.xxx, Inc., a Delaware corporation
("Client"), having its principal place of business at 0000 Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
WHEREAS, Consultant has extensive background in the administrative
and accounting areas;
WHEREAS, Consultant desires to be engaged by Client to provide
information, evaluation and consulting services to the Client in his
areas of knowledge and expertise on the terms and subject to the
conditions set forth herein;
WHEREAS, Client is a publicly held corporation with its common
stock shares trading on the Pink Sheets LLC under the ticker symbol
"SYCD," and desires to further develop its business and increase its
common stock share's value; and
WHEREAS, Client desires to engage Consultant to provide
information, evaluation and consulting services to the Client in his
areas of knowledge and expertise on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant
provides to Client, the parties agree as follows:
1. Services of Consultant.
Consultant shall provide services in connection with assisting in
due diligence and evaluation of acquisition candidates for Client. As
such, Consultant will be providing bona fide services to Client. The
services to be provided by Consultant will not be in connection with the
offer or sale of securities in a capital-raising transaction, and will
not directly or indirectly promote or maintain a market for Client's
securities.
2. Consideration.
Client agrees to pay Consultant, as her fee and as consideration
for services provided, three hundred thousand (300,000) shares of S-8
free trading common stock in Client. The shares are eligible to be paid
upon the effectiveness of a Form S-8 Registration Statement with the
U.S. Securities and Exchange Commission and with any appropriate states
securities administrator.
3. Confidentiality.
Each party agrees that during the course of this Agreement,
information that is confidential or of a proprietary nature may be
disclosed to the other party, including, but not limited to, product and
business plans, software, technical processes and formulas, source
codes, product designs, sales, costs and other unpublished financial
information, advertising revenues, usage rates, advertising
relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information
that the receiving party can demonstrate (a) is, as of the time of its
disclosure, or thereafter becomes part of the public domain through a
source other than the receiving party, (b) was known to the receiving
party as of the time of its disclosure, (c) is independently developed
by the receiving party , or (d) is subsequently learned from a third
party not under a confidentiality obligation to the providing party.
4. Late Payment.
Client shall pay to Consultant all fees within fifteen (15) days of
the due date. Failure of Client to finally pay any fees within fifteen
(15) days after the applicable due date shall be deemed a material
breach of this Agreement, justifying suspension of the performance of
the "Services" provided by Consultant, will be sufficient cause for
immediate termination of this Agreement by Consultant. Any such
suspension will in no way relieve Client from payment of fees, and, in
the event of collection enforcement, Client shall be liable for any
costs associated with such collection, including, but not limited to,
legal costs, attorneys' fees, courts costs, and collection agency fees.
5. Indemnification.
(a) Client.
Client agrees to indemnify, defend, and shall hold harmless
Consultant and /or his agents, and to defend any action brought against
said parties with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees to the extent that such
action is based upon a claim that: (i) is true, (ii) would constitute a
breach of any of Client's representations, warranties, or agreements
hereunder, or (iii) arises out of the negligence or willful misconduct
of Client, or any Client Content to be provided by Client and does not
violate any rights of third parties, including, without limitation,
rights of publicity, privacy, patents, copyrights, trademarks, trade
secrets, and/or licenses.
(b) Consultant.
Consultant agrees to indemnify, defend, and shall hold harmless
Client, its directors, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of action,
debt or liability, including reasonable attorneys' fees, to the extent
that such an action arises out of the gross negligence or willful
misconduct of Consultant.
(c) Notice.
In claiming any indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of any
claim, which the indemnified party believes falls within the scope of
the foregoing paragraphs. The indemnified party may, at its expense,
assist in the defense if it so chooses, provided that the indemnifying
party shall control such defense, and all negotiations relative to the
settlement of any such claim. Any settlement intended to bind the
indemnified party shall not be final without the indemnified party's
written consent, which shall not be unreasonably withheld.
6. Limitation of Liability.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if Consultant
has been advised of the possibility of such damages. In any event, the
liability of Consultant to Client for any reason and upon any cause of
action, regardless of the form in which the legal or equitable action
may be brought, including, without limitation, any action in tort or
contract, shall not exceed ten percent (10%) of the fee paid by Client
to Consultant for the specific service provided that is in question.
7. Termination and Renewal.
(a) Term.
This Agreement shall become effective on the date appearing next to
the signatures below and terminate one (1) year thereafter. Unless
otherwise agreed upon in writing by Consultant and Client, this
Agreement shall not automatically be renewed beyond its Term.
(b) Termination.
Either party may terminate this Agreement on thirty (30) calendar
days written notice, or if prior to such action, the other party
materially breaches any of its representations, warranties or
obligations under this Agreement. Except as may be otherwise provided in
this Agreement, such breach by either party will result in the other
party being responsible to reimburse the non-defaulting party for all
costs incurred directly as a result of the breach of this Agreement, and
shall be subject to such damages as may be allowed by law including all
attorneys' fees and costs of enforcing this Agreement.
(c) Termination and Payment.
Upon any termination or expiration of this Agreement, Client shall
pay all unpaid and outstanding fees through the effective date of
termination or expiration of this Agreement. And upon such termination,
Consultant shall provide and deliver to Client any and all outstanding
services due through the effective date of this Agreement.
8. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor" relationship
between Consultant and Client.
(b) Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or variation
of that or any other such right. Any defective or partial exercise of
any of such rights shall not preclude any other or further exercise of
that or any other such right. No act or course of conduct or
negotiation on the part of any party shall in any way preclude such
party from exercising any such right or constitute a suspension or any
variation of any such right.
(c) Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be binding
upon, and shall inure to the benefit of, the undersigned parties and
their heirs, executors, administrators, representatives, successors, and
permitted assigns.
(d) Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described in
this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to interpret
or constitute this Agreement.
(e) Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or in
part, without the written consent of the other party, and any purported
assignment in violation hereof shall be void.
(f) Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(g) Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the extent
necessary to render it enforceable and as so severed or modified, this
Agreement shall continue in full force and effect.
(h) Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(i) Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no gender
shall be deemed to include the equivalent pronoun of the other or no gender.
(j) Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other
actions as the requesting party may reasonably require to carry out the
terms of this Agreement and the transactions contemplated hereby.
(k) Notices.
Any notice which is required or desired under this Agreement shall
be given in writing and may be sent by personal delivery or by mail
(either a. United States mail, postage prepaid, or b. Federal Express or
similar generally recognized overnight carrier), addressed as follows
(subject to the right to designate a different address by notice
similarly given):
To Client:
Xxxx Xxxxxxxx, President
Xxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
To Consultant:
Xxxxxxx Xxxxxxxx
0000 Xxxxxx Xxxx, #0-X
Xxxxxxx Xxxxx, Xxxxxxx 00000-0000
(l) Governing Law.
This Agreement shall be governed by the interpreted in accordance
with the laws of the State of California without reference to its
conflicts of laws rules or principles. Each of the parties consents to
the exclusive jurisdiction of the federal courts of the State of
California in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non coveniens, to the
bringing of any such proceeding in such jurisdictions.
(m) Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
(n) Survival of Provisions.
The provisions contained in paragraphs 3, 5, 6, and 8 of this
Agreement shall survive the termination of this Agreement.
(o) Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the date
written above.
Xxxxxxx.xxx, Inc.
By : /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, President
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
